TlBBS v. ZlRKLE et als.

• Decision Date: 16 February 1904
• Citation: 55 W.Va. 49
• Parties: TlBBS v. ZlRKLE et als.
• Court: West Virginia Supreme Court

55 W.Va. 49

TlBBS

v.ZlRKLE et als.

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1904.

Decided February 16, 1904.

1. Land Power to Belt Option.

The written power to sell land does not include the power to option unless so expressed, (p. 53).

2. Land Option not Binding on Land Owners.

An option, not authorized by a written power to sell, is not binding on the land owners or a co-agent under such opwer to sell without express ratification, (p. 54).

3. Land Go-Agent Purchase.

A co-agent under a power to sell, is not bound by an unauthorized option, not given or ratified by himself, and if he purchase the land for himself, he cannot be held as a trustee for the claimant under such option, (p. 54).

4. Land Option when Revocable.

An option given for a valuable money consideration cannot be revoked until the time limit therein has expired. If such option is without consideration, it may be withdrawn or revoked at any time before acceptance, (p. 54).

5. Land Option, when Enforceable.

An option given without authority while not binding on the land owners who did not authorize or ratify it, is binding and enforceable against the optioner whose land is included therein, (p. 55).

6. Land Purchaser for Value without Notice.

A person who has taken an option upon land, but has not paid the purchase money in full, is not a purchaser for value without notice, (p. 55).

Appeal from Circuit Court, Barbour County. Bill by B. B. Tibbs against A. D. Zirkle and others. Decree for defendants, and plaintiff appeals.

Reversed in Part. Ice & Ice and W. S. Meredith, for appellant. W. T. George and E. D. Talbott, for appellees.

Dent, Judge:

This is a suit for specific performance instituted in the circuit court of Barbour county by B. B. Tibbs, plaintiff, against A. D. Zirkle et al., in which the circuit court decreed specific performance against A. D. Zirkle individually, but refused it against N. G. Keim and the other defendants. The plaintiff appeals.

The suit is founded on the following optional contract: "This agreement witnesseth: That A. D. Zirkle, attorney, in fact party of the first part, for and in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, do hereby sell and convey to E. C. Dunnington & Co., party of the second part, heirs and assigns, the right to purchase all the coal except from one to three acres of each of the sixteen farms hereby represented in and under that certain tract of land in Valley District, Barbour County, W. Va., bounded by lands of N. T. Arnold, on East, North by P. Monahon and O'Brien tract, on West by Middle Eork Eiver, on the South by Middle Fork Eiver and N. T, Arnold and containing eighteen hundred acres, more or less, together with the right to mine and remove every part of the same without being required to provide for the support of overlying strata or surface, and without being liable for any injury to the same or to anything therein or thereon by reason thereof and with all reasonable privileges for ventilating, pumping and draining the mines, together with the free and uninterrupted right of way into and through said lands and to build, keep and maintain roads and ways in and through said mines forever, for the transportation of said coal, etc., and of coal and other things necessary for mining purposes from and to other lands.

"For which the parties of the second part, their heirs or assigns, shall pay eighteen dollars per acre for each and every acre of coal, no allowance being made for out crop as follows: Eighteen hundred dollars within sixty days after this date, the balance on or before the 3rd day of May, 1903, and it is agreed that said second party shall pay expenses of survey, abstracting of titles, etc., and further the party of the first part reserves the right to bore through said coal for oil and gas and to market same with being liable for damage.

"A good deed, clear of all encumbrances, with a general warranty to be made to said second parties, heirs or assigns when so notified by said second party.

"It is expressly understood and agreed that if the said coal is not accepted and paid for by the party of the second part, heirs or assigns, on or before the 3rd day of May, 1903, this agreement may be considered rescinded and neither party shall be bound thereby. And it is agreed that if the said 1800 dollars is not paid on or before the 3rd day of March, 1903, this contract is null and void, further, if said payment is made and the balance $17.00 dollars per acre not paid on or before the 3rd day of May, 1903, this contract is null and void and said payment is a forfeiture.

"In witness whereof, the said parties have hereto set their hands and seals this 3d day of January, A. P. 1903.

"Signed, sealed and delivered in the presence of A. D. Zirkle, Attorney in Fact. (L. S.).

"Attest: C. Morris"

This option was assigned to the plaintiff, who claims he fully conformed to all the stipulations thereof. The option is claimed to have been executed by virtue of the following power of attorney:

"Be it remembered that we the undersigned hereby appoint A. D. Zirkle to sell our coal, except enough for domestic use, and hereby give him power of attorney to make said sale, not to sell for less than $15.00 per acre and give him full control of said sale, and we agree to abide by the said sale that he may make; and we further agree to let him manage the sale and have the power to make said sale as long as he thinks there is a chance to sell, and we further agree to pay the said A. D. Zirkle reasonable compensation for his time and his expense for making sale as aforesaid if he make said sale, but if he fail to make the said sale no compensation is to be paid the said A. D. Zirkle for his time and expenses except agreed upon by the majority of the undersigned, and we further agree to give him all the -time necessary to make tests or opening and also not to interfere with any sale that may be pending if he thinks there is a chance to sell.

"Witness our hand this 14th day of September, 1900. Jacob Zirkle, 400 A. Patrick McGinnis, 156 A. Bridget Caughlin, 102 A. H. W. Goss, 110 A. D. T. Goss, 45 A. Lewis Zirkle, 200 A. N. Rohrbaugh, 70 A. B. F. Wiseman, 180 A. G. C. Wiseman, 20 A. Valeria Wilson, 50 A. A. B. Wilson, 150 A. M. E. Gower, 60 A. A. D. Zirkle, 100 A. J. D. Zirkle, 110 A."

The defendant Keim between the 22d of January, 1903, and the 10th of Februaiw, 1903, took options on the coal of A. I). Zirkle, Lewis Zirkle, Nathan Rohrbaugh, Henry W. Goss, A. B. Wilson, B. F. Wiseman, Ann Goss, Jacob Zirkle, Margaret E. Gowen, J. D. Zirkle, G. C. Wiseman and Valeria Wilson, and paid a down payment on the purchase money to each, which was forfeitable. None of Kenn's optioners had actual notice of the plaintiff's option prior to the date of Keim's options. While Zirkle, whose deposition alone is taken in behalf of defendant Keim, testifies that Keim did not have notice of such option, he admits that there was a contract between himself and Keim at the time the option was taken by which Keim was interested in such option, and if the same matured into a sale he, Keim, was entitled to share equally with Zirkle in the profits of the sale, and about the time and just previous to the taking of the options by Keim, with Zirkle's assistance, Zirkle endeavored to get the op- tionors to abandon their options, thus plainly showing that Zirkle was working in Keim's interest and no doubt with the full knowledge and approval of Keim.

So the important questions in this case are narrowed down to two: First, Did Zirkle's power of attorney authorize him to execute the plaintiff's options? Second. Did Keim occupy such a relation toward the plaintiff as prevented him from taking...